Richard Harwood QC OBE looks at the potential consequences of the government's decison not to extend the use of virtual meetings beyond 7th May.
For years councillors have met in public, in buildings in or close to the council area, making the important decisions for their locality. The Covid pandemic brought an immediate threat to this process. The ‘stay at home’ mantra in what has subsequently become known as ‘Lockdown 1’ was particularly fierce, and fiercely complied with. Even where they needed personnel in buildings, businesses and other organisations were trying to adopt quickly to Covid-secure procedures.
The central and local government response was commendably swift.
Section 78 of the Coronavirus Act 2020 allowed the relevant national authority to make regulations providing for virtual meetings in local authorities, including the Greater London Authority, district, county and unitary councils, parish councils, national park authorities, conservation boards and school admissions appeal panels. The Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020 (“the 2020 Regulations”) were made, coming into force on 4th April, only 12 days after the first lockdown had been announced. Those authorised meetings to be held without all participants being in the same place, allowing remote access by video or audio means. Not only could councillors join in remotely, but the regulations allowed public speaking arrangements to be continued. It was an essential part of such meetings that the public were allowed to watch or listen to the proceedings remotely by a live feed.
These procedures were very quickly adopted by local authorities and proved a great success. They avoided the severe democratic deficiencies which would have been associated with a wholesale transfer of decision making to officers or single executive members. But they also brought local decision-making to a far wider audience. Some local authorities had previously webcast meetings, but even so tended only to cover those in the council chamber, such as full council and sometimes planning committees. From April 2021 all council decision making and scrutiny meetings were not only broadcast live but usually put on local authority YouTube channels.
The Coronavirus Act allowed the virtual meetings regulations to apply only to meetings held before 7th May 2021. In March 2020 that seemed a safe distance away. Time however marches on, and measures against the pandemic are still not concluded. What then for virtual meetings?
On 25th March 2021 the Local Government Minister, Luke Hall MP, wrote to local authorities saying that the current provisions would not be extended. As lockdown 3 unwound, the Minister encouraged councils to continue broadcasting. He launched a consultation into what should happen next.
Many local government bodies were not happy. Several had been asking the government for months to extend the virtual meeting powers. The Local Government Association said the decision was ‘extremely disappointing’. The professional bodies for council lawyers and committee administrators, Lawyers in Local Government, the Association of Democratic Services Officers had with Hertfordshire County Council made an application to the High Court for a declaration that councils already had the powers needed to hold online meetings.
Face to face council meetings can lawfully be held from 7th May. The new Health Protection (Coronavirus, Restrictions) (Steps) (England) Regulations 2021 do not prohibit meetings indoors which are reasonably necessary for work or voluntary services, so council meetings can be held, with public attendance (see schedule 1, Part 1, exception 3 of the regulations). Indeed essential meetings could always have been held. The social distancing expected for Covid-secure meetings would though usually mean that full council meetings (so with all members) could not take place in the council chamber. Rooms normally used by parish councils might also be too small. New venues would have to be sought. Council meetings may therefore take place, and move towards normality. May 7th will not be the day the world stood still.
The approach to take, as the country comes out of lockdown, and into the future, is bound to be nuanced and subject to a range of opinion.
More than most organisations, local authorities benefit from face to face meetings with councillors and officers. Councils are unusual creatures. Senior decision making is put in the hands of elected members who are meant to be using their spare time, although leaders and some senior executive members may in reality be part or virtually full time. In the normal way of things, councillors are not in the council offices all the time or indeed meeting their fellow members. Relations between councillors and officers need to be developed and continued. The ability to have informal chats with officers and members at the fringes of meetings is vital to make authorities run effectively. Information which would not other be told, will be passed on. Other problems can be sorted out without fuss. Councillors will find they have more in common with the opposition than they might expect, often with a similar view of management issues and the demands of constituents.
Unlike most businesses and central government, councils are not organisations where the key people are working closely together on a day-to-day basis, nor are they a team assembled for a specific project, which will disband once it is completed. Instead councillors are brought together mainly for decision-making. Politics is part of local government and political debates can be fierce. But it is better that they are conducted by people who help each other to the milk during tea breaks, than by keyboard warriors who see each other only through screens.
May 6th will see a Super Thursday of the elections which were due in 2021 and those delayed from 2020. There will be an influx of new councillors and continuing councillors are likely not to have seen each other face to face for over a year.
Good governance really does require councillors to start meeting together and with officers face to face.
How then to take forward the benefits of virtual meetings whilst promoting local cohesion? Simply rolling forward the current provisions has the potential to embed a remote culture which is destructive of good local government. However there have been very real benefits from allowing virtual participation and observation.
One possibility is to allow hybrid meetings in which some councillors may attend remotely, provided that a certain proportion are physically present. This could accommodate councillors whose work, family or childcare arrangements might prevent them attending particular meetings in person, and may be more efficient for some of the larger unitary counties, such as Cornwall. It would though be a matter of management, particularly political management, to avoid individual councillors becoming semi-detached.
The law has never prevented speakers who are not members of the particular body from taking part remotely. So, for example, a councillor could speak at a cabinet meeting on a ward matter through a video link. Physical attendance would solely be concerned with the members of the cabinet themselves. Similarly officers could attend remotely, which might be useful for an officer with only a minor role on a single item. Where public speaking is allowed, that could also be done through a remote link, although speakers would usually prefer to be there in person.
Finally broadcast and subsequent playback of all meetings, whether in person or hybrid could be required. This will embed the greater public access and knowledge of local democracy which the last 12 months enforced experiment has brought.
Local government must not be remote from the people it serves. To do that it must not be remote from itself.
Richard Harwood OBE QC is a barrister at 39 Essex Chambers